Ninth Standing Committee
on Delegated Legislation

Thursday 11 April 2002

[Mr. Bill Olner in the Chair]

Mental Health Act 1983
(Remedial) Order 2001

4.30 pm

The Minister of State, Department of Health (Jacqui Smith): I beg to move,

That the Committee has considered the Mental Health Act 1983 (Remedial) Order 2001 (S.I. 2001, No. 3712).

The purpose of the debate is to seek approval for the remedial order, which was made on 18 November 2001 and laid before Parliament the following day, and which amends the Mental Health Act 1983. The order is an example of the Government's commitment to ensuring that mental health legislation is consistent with the Human Rights Act 1998 and the European convention on human rights. Hon. members may like to know that they are making history: this is the first remedial order to be made under section 10 of the Human Rights Act.

It will be useful if I outline the details of the case that led to the making of the order. A patient who was detained for treatment under the Mental Health Act 1983 applied to the mental health review tribunal for discharge from detention under the 1983 Act. Sections 72 and 73 of the Act set out the powers of the tribunal. It was argued before the courts on behalf of the patient that on a natural reading of the Act the tribunal was not required to discharge a patient unless it was satisfied that at least one of the criteria set out in the relevant section did not exist. That double negative formulation had the effect of placing the burden of proof on the patient, and it was argued that that was incompatible with articles 5(1) and 5(4) of the European convention on human rights, which deal with an individual's right to liberty and security.

The Court of Appeal accepted those arguments and declared on 4 April last year that those sections of the 1983 Act were incompatible with articles 5(1) and 5(4) of the convention. Section 10 of the Human Rights Act sets out procedures for remedial action to remove the incompatibility, and I will outline why the Government chose to adopt that approach shortly. The effect of the remedial order is to amend sections 72 and 73 of the 1983 Act to remove the incompatibility immediately. Its effect is to shift the burden of proof from the patient to the detaining authority in cases of compulsory detention. It makes it clear that tribunals must order the release of patients unless positively satisfied that the criteria for detention continue to be met.

Let me explain why that route was taken. Sections 4(6) and 6(2) of the 1998 Act preserve the sovereignty of Parliament, and there is no power in the Act to strike down primary legislation; therefore if remedial action is not taken, public authorities are obliged to follow provisions in primary legislation, even if they are incompatible with the European convention on

Column Number: 4

human rights. As I have mentioned, the order deals with the first declaration of incompatibility requiring remedial action under the 1998 Act. The Government were concerned to ensure that correct procedures were followed, so we considered a number of options for addressing the incompatibility before deciding to make a remedial order.

First, even though the Court of Appeal refused leave to appeal against the judgment, there was the option to petition the House. The Government's view was that there was no discernible error of law in the Court of Appeal's judgment. Furthermore, the judgment was not out of line with the direction of the Government's policy intentions for new mental health legislation, which are set out in the White Paper, ''Reforming the Mental Health Act''. Secondly, consideration was given to introducing legislation to amend the relevant sections of the 1983 Act. That approach was rejected on the grounds that the amendments needed fell outside the scope of any planned legislation, and it would not be appropriate to introduce such amending legislation before Parliament had an opportunity to consider a new mental health Bill in its entirety.

As hon. Members know, the Government are committed to introducing a Bill to replace the 1983 Act as soon as time is available. However, we decided that the timetable for replacing such a complex and important piece of legislation would inevitably lead to an unacceptable delay in remedying the incompatibility that the Court of Appeal had identified. We therefore decided that making a remedial order was the best approach.

Hon. Members will have had the opportunity to read the sixth report of the Joint Committee on Human Rights, which considered the remedial order. One subject of consideration was the procedure chosen by the Government to introduce the remedial order. There are two procedures for introducing a remedial order under the provisions of the Human Rights Act—they can be described as the ordinary procedure and the urgent procedure. The major difference between the two is that an order may be made under the urgent procedure if it appears that, because of the urgency of the matter, it is necessary to make an order without the draft having first been approved by Parliament. In both instances, however, the required information is to be laid before Parliament for approval by resolution of each House within 120 days.

At the outset, the Government intended to use the ordinary procedure. Since there is, as I said, no precedent for making such an order, our initial view was that it would be appropriate to give Parliament the opportunity to review and debate the proposed order before it came into effect. However, the Joint Committee pointed out that the remedying of any incompatibility that could affect the liberty of the individual should be regarded as urgent, and that the change in the law proposed was relatively simple and uncontroversial. In the light of the Joint Committee's concerns, the Government decided to make an order under the urgent procedure.

The Joint Committee raised a number of other questions; its letters, together with my responses, are

Column Number: 5

set out in the report. In summary, the Joint Committee was generally satisfied with the responses that it received, with one exception. Its members took the view that it would have been appropriate to include a statutory compensation scheme in the remedial order. However, the Government propose that any claims for compensation should be handled on an ex gratia basis. The Joint Committee, while expressing disappointment that its suggestion was not accepted, agreed that the proposal to deal with any claims for compensation on an ex gratia basis would, if applied fairly, forestall any further legal challenge.

I referred earlier to the fact that the Government considered introducing amending legislation instead of a remedial order. That option was rejected on the grounds that it was likely to create pressure to amend other parts of the Mental Health Act before Parliament had an opportunity to consider a new mental health Bill in its entirety. I repeat: we are committed to reforming the Mental Health Act, but such matters cannot be rushed. New mental health legislation will provide the statutory framework to ensure that people with serious mental disorders get the treatment they need and that their safety and the safety of the public are properly protected. It will cover a number of topics that go to the heart of the Human Rights Act, so it is essential that we get the provisions right. It is inevitable that that will take time.

Current mental health law was conceived in the 1950s, with some revisions in the 1983 Act. One main aim of a new mental health Bill will be to ensure that it complies fully with the Human Rights Act and the European convention on human rights. Since the last full review of mental health legislation, there have been significant developments in the ways in which patients with mental health problems are treated and cared for. New drug treatments and different patterns of care whereby more people are treated in the community than in institutions, as well as a wider role for other therapeutic approaches, have all created a markedly different landscape. Reforming mental health legislation will bring it into line with contemporary patterns of care and treatment that the Government's investment in mental health services is creating.

The Government have committed themselves to radical reform of mental health service provision and of the mental health legislation that underpins it. Achieving such an ambitious programme of reform and modernisation requires considerable commitment and determination. We are resolved to ensure that we have mental health services that we can be proud of and that users of those services will value. However, achieving such an ambitious programme of change requires time, which is why we are taking action through the remedial order to ensure that existing legislation is compatible with the provisions of the European convention.

The remedial order shows that the Government have taken very seriously our duty to address the issues raised by the declaration of incompatibility. We have seriously considered the available options, as well as the views of those who commented on the proposed order, especially members of the Joint Committee on

Column Number: 6

Human Rights. I am satisfied that the order ensures that the relevant provisions of the Mental Health Act are now compatible with the European convention and so afford better protection of patients' rights. I ask the Committee to approve the order.

4.41 pm

Mr. Oliver Heald (North-East Hertfordshire): The order will not prove to be a matter of controversy between the Opposition and the Government. However, in defence of those who considered the Mental Health Bill in Committee in 1983, it is fair to reflect that the world was different then. As the Minister acknowledged, at that time, the treatments available were very different and it was not envisaged that the tribunal would be an adversarial body. The Court of Appeal took a view on the burden of proof and the context in which it was to be used, and its final decision was informed by all the cases since 1983 that took place against the background of the European convention on human rights. Those who considered the Act in 2001 did so in the light of current treatments, and no blame should attach to those who considered the 1983 legislation, including those Committee members who are here today.

However, in the modern world, it is wrong that the discharge of someone who has been detained should be possible only if they satisfy the tribunal that they are not suffering from mental illness sufficient to warrant their detention, or only if their detention is not necessary for their health and safety or for the protection of the public. The conditions whereby someone is detained must be established in order for them to be detained, so it would be wrong if they were not entitled to be discharged when those conditions could no longer be satisfied. That is the background to the Court of Appeal's decision, and we do not disagree with it.

I am concerned about the meaning of the judgment in paragraphs 32 to 34, which formed the basis of some correspondence between the Minister and the Joint Committee on Human Rights. The Court of Appeal appears to be saying that if someone is detained by reason of schizophrenia, that alone may be enough to deny them discharge, however well controlled their condition may be at the time of the application, and even if the schizophrenia is in remission.

A condition such as schizophrenia is incurable, but it can be controlled and can go into remission. One of the great challenges is to persuade the public that people who are being treated and whose symptoms are controlled can lead a useful life in the community. Not too much stigma should attach to the label ''schizophrenic'' as it can cover a range of people, from those with a severe and persistent illness who need to be in a controlled environment all the time, to those whose symptoms can be well controlled and who can work. The recent film, ''A Beautiful Mind'', highlights the story of a Nobel prize winner who suffered from schizophrenia.

In her letter to the Joint Committee, the Minister says that

Column Number: 7

''the Court of Appeal suggests that schizophrenia, even when in remission, enables the Tribunal to make the positive findings necessary to satisfy Article 5''.

That appears on page 3 of the appendices. Does she mean that, under the law, the tribunal is able to tell a schizophrenic, ''Oh well, that is the end of the matter''? Can she reassure those who are concerned that there is a double lock on the provision and that there is an element of discretion, as we all hope and expect?

What is the extent of the problem that the remedial order will remedy? In most cases, the tribunal will be able to say that the mental illness from which a person is suffering is such that they must remain in detention, or that there are issues relating to the safety of either that person or the public. In how many such cases will the burden of proof issue be important? Is it a very small—possibly tiny—category? I suspect that it is. From what I have seen, it is not clear that the burden of proof issue was decisive even in the case of H himself. I would be interested to hear the Minister's views.

There are other provisions under which the burden of proof is exactly the same as it is in the sections of the Mental Health Act 1983 that we are discussing, such as in the Crime (Sentences) Act 1997, and in section 72(4) of the 1983 Act, which deals with guardianship. What do the Government intend to do about that? The remedial order does not deal with it, but something should be done because incompatible provisions are being made obvious, as happened in the case of H. On the compensation scheme, what assurances can the Minister give us that the ex gratia basis on which compensation will be made will be at least as good as anything that a statutory scheme would have offered?